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(A) To provide for the health, safety, and welfare of its citizens, and to ensure the integrity of its streets and the appropriate use of the rights-of-way, the city strives to keep its rights-of-way in a state of good repair and free from unnecessary encumbrances.
(B) Accordingly, the city hereby enacts this new chapter of this code relating to right-of-way permits and administration. This chapter clarifies that no right of way permit shall be issued for the installation of private irrigation within the right-of-way. This chapter imposes reasonable regulation on the placement and maintenance of facilities and equipment currently within its rights-of-way or to be placed therein at some future time. It is intended to complement the regulatory roles of state and federal agencies. Under this chapter, persons excavating and obstructing the rights-of-way will bear financial responsibility for their work. Finally, this chapter provides for recovery of out-of-pocket and projected costs from persons using the public rights-of-way.
(C) This chapter shall be interpreted consistently with 1997 Session Laws, Chapter 123, substantially codified in M.S. §§ 237.16, 237.162, 237.163, 237.79, 237.81, and 238.086 (the “Act”) and 2017 Minn. Laws, Chapter 94 Article 9, amending the Act, as they all may be amended from time to time, and the other laws governing applicable rights of the city and users of the right-of-way. This chapter shall also be interpreted consistent with Minn. Rules parts 7819.0050 to 7819.9950 and Minn. Rules Chapter 7560, as they all may be amended from time to time, where possible. To the extent any provision of this chapter cannot be interpreted consistently with the Minnesota Rules, that interpretation most consistent with the Act and other applicable statutory and case law is intended. This chapter shall not be interpreted to limit the regulatory and police powers of the city to adopt and enforce general ordinances necessary to protect the health, safety, and welfare of the public.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023)
Pursuant to the authority granted to the city under state and federal statutory, administrative, and common law, the city hereby elects, pursuant to M.S. § 237.163 subd. 2(b), as it may be amended from time to time, to manage rights-of-way within its jurisdiction.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023)
For the purpose of this chapter, the following definitions apply unless the context clearly indicates or requires a different meaning.
ABANDONED FACILITY. A facility no longer in service or physically disconnected from a portion of the operating facility, or from any other facility, that is in use or still carries service. A facility is not ABANDONED unless declared so by the right-of-way user.
ALTERATION. Any changes to the right-of-way, including, but not limited to, installation of sidewalk and driveways.
ALTERATION PERMIT. The permit which, pursuant to this chapter, must be obtained before a person may make alteration in a right-of-way. An ALTERATION PERMIT allows the holder to alterate that part of the right-of-way described in such permit.
APPLICANT. Any person requesting permission to excavate, alter, or obstruct a right-of-way.
CITY. The City of Battle Lake, Minnesota. CITY also means the city’s elected officials, officers, employees, and agents.
CITY PERSONNEL. The Public Works Director, Chief of Police, and/or their designees.
COLLOCATE or COLLOCATION. To install, mount, maintain, modify, operate, or replace a small wireless facility on, under, within, or adjacent to an existing wireless support structure or utility pole that is owned privately, or by the city or other governmental unit.
COMMISSION. The State Public Utilities Commission.
CONGESTED RIGHT-OF-WAY. A crowded condition in the subsurface of the public right-of-way that occurs when the maximum lateral spacing between existing underground facilities does not allow for construction of new underground facilities without using hand digging to expose the existing lateral facilities in conformance with M.S. § 216D.04, subd. 3, as it may be amended from time to time, over a continuous length in excess of 500 feet.
CONSTRUCTION PERFORMANCE BOND. Any of the following forms of security provided at permittee’s option:
(1) Individual project bond;
(2) Cash deposit;
(3) Security of a form listed or approved under M.S. § 15.73, subd. 3, as it may be amended from time to time;
(4) Letter of Credit, in a form acceptable to the city;
(5) Self-insurance, in a form acceptable to the city; or
(6) A blanket bond for projects within the city, or other form of construction bond, for a time specified and in a form acceptable to the city.
DEGRADATION. A decrease in the useful life of the right-of-way caused by excavation in or disturbance of the right-of-way, resulting in the need to reconstruct such right-of-way earlier than would be required if the excavation or disturbance did not occur.
DEGRADATION COST. Subject to Minn. Rules part 7819.1100, as it may be amended from time to time, means the cost to achieve a level of restoration, as determined by the city at the time the permit is issued, not to exceed the maximum restoration shown in plates 1 to 13, set forth in Minn. Rules, parts 7819.9900 to 7819.9950, as they may be amended from time to time.
DEGRADATION FEE. The estimated fee established at the time of permitting by the city to recover costs associated with the decrease in the useful life of the right-of-way caused by the excavation, and which equals the degradation cost.
DELAY PENALTY. The penalty imposed as a result of unreasonable delays in right-of-way excavation, obstruction, patching, or restoration as established by permit.
DEPARTMENT. Public Works Department.
EMERGENCY. A condition that:
(1) Poses a danger to life or health, or of a significant loss of property; or
(2) Requires immediate repair or replacement of facilities in order to restore service to a customer.
EQUIPMENT. Any tangible asset used to install, repair, or maintain facilities in any right-of-way.
EXCAVATE. To dig into or in any way remove or physically disturb or penetrate any part of a right-of-way.
EXCAVATION PERMIT. The permit which, pursuant to this chapter, must be obtained before a person may excavate in a right-of-way. An EXCAVATION PERMIT allows the holder to excavate that part of the right-of-way described in such permit.
EXCAVATION PERMIT FEE. Money paid to the city by an applicant to cover the costs.
FACILITY or FACILITIES. Any tangible asset in the right-of-way required to provide utility service.
HIGH DENSITY CORRIDOR. A designated portion of the public right-of-way within which telecommunications right-of-way users having multiple and competing facilities may be required to build and install facilities in a common conduit system or other common structure.
HOLE. An excavation in the pavement, with the excavation having a length less than the width of the pavement.
LOCAL REPRESENTATIVE. A local person or persons, or designee of such person or persons, authorized by a right-of-way user to accept service and to make decisions for that right-of-way user regarding all matters within the scope of this chapter.
MANAGEMENT COSTS. The actual costs the city incurs in managing its rights-of-way, including such costs, if incurred, as those associated with registering applicants; issuing, processing, and verifying right-of-way or small wireless facility permit applications; inspecting job sites and restoration projects; maintaining, supporting, protecting, or moving user facilities during right-of-way work; determining the adequacy of right-of-way restoration; restoring work inadequately performed after providing notice and the opportunity to correct the work; and revoking right-of-way or small wireless facility permits. MANAGEMENT COSTS do not include payment by a telecommunications right-of-way user for the use of the right-of-way, unreasonable fees of a third-party contractor used by the city including fees tied to or based on customer counts, access lines, or revenues generated by the right-of-way or for the city, the fees and cost of litigation relating to the interpretation of 1997 Session Laws Chapter 123; M.S. §§ 237.162 or 237.163, as they all may be amended from time to time; or any ordinance enacted under those sections, or the city fees and costs related to appeals.
OBSTRUCT. To place any tangible object in a right-of-way so as to hinder free and open passage over that or any part of the right-of-way. Does not include vehicles when parked for less than a 24-hour period without moving or vehicles are authorized by the owner or authorized users of the adjacent property.
OBSTRUCTION PERMIT. The permit which, pursuant to this chapter, must be obtained before a person may obstruct a right-of-way, allowing the holder to hinder free and open passage over the specified portion of that right-of-way, for the duration specified therein.
OBSTRUCTION PERMIT FEE. Money paid to the city by a permittee to cover the costs.
PATCH or PATCHING.
(1) A method of pavement replacement that is temporary in nature. A PATCH consists of:
(a) The compaction of the subbase and aggregate base; and
(b) The replacement, in kind, of the existing pavement for a minimum of two feet beyond the edges of the excavation in all directions.
(2) A PATCH is considered full restoration only when the pavement is included in the city’s five-year project plan.
PAVEMENT. Any type of improved surface that is within the public right-of-way and that is paved or otherwise constructed with bituminous, concrete, aggregate, or gravel.
PERMIT. Has the meaning given RIGHT-OF-WAY PERMIT in M.S. § 237.162, as it may be amended from time to time.
PERMITTEE. Any person to whom a permit to excavate or obstruct a right-of-way has been granted by the city under this chapter.
PERSON. An individual or entity subject to the laws and rules of this state, however organized, whether public or private, whether domestic or foreign, whether for profit or nonprofit, and whether natural, corporate, or political.
PUBLIC RIGHT-OF-WAY or RIGHT-OF-WAY. The area on, below, or above a public roadway, highway, street, cartway, bicycle lane, or public sidewalk in which the city has an interest, including other dedicated rights-of-way for travel purposes and utility easements of the city. A RIGHT-OF-WAY does not include the airwaves above a right-of-way with regard to cellular or other non-wire telecommunications or broadcast service.
PROBATION. The status of a person that has not complied with the conditions of this chapter.
PROBATIONARY PERIOD. One year from the date that a person has been notified in writing that they have been put on probation.
RESTORE or RESTORATION. The process by which an excavated right-of-way and surrounding area, including pavement and foundation, is returned to the same condition and life expectancy that existed before excavation.
RESTORATION COST. The amount of money paid to the city by a permittee to achieve the level of restoration according to plates 1 to 13 of State Public Utilities Commission rules.
RIGHT-OF-WAY PERMIT. Either the excavation permit or the obstruction permit, or both, depending on the context, required by this chapter.
RIGHT-OF-WAY USER.
(1) A telecommunications right-of-way user as defined by M.S. § 237.162, subd. 4, as it may be amended from time to time; or
(2) A person owning or controlling a facility in the right-of-way that is used or intended to be used for providing utility service, and who has a right under law, franchise, or ordinance to use the public right-of-way.
SERVICE or UTILITY SERVICE. Includes:
(1) Those services provided by a public utility as defined in M.S. § 216B.02, subds. 4 and 6, as they may be amended from time to time;
(2) Services of a telecommunications right-of-way user, including transporting of voice or data information;
(3) Services of a cable communications systems as defined in M.S. Chapter 238, as it may be amended from time to time;
(4) Natural gas or electric energy or telecommunications services provided by the city;
(5) Services provided by a cooperative electric association organized under M.S. Chapter 308A, as it may be amended from time to time; and
(6) Water and sewer, including service laterals, steam, cooling, or heating services.
SERVICE LATERAL. An underground facility that is used to transmit, distribute, or furnish gas, electricity, communications, or water from a common source to an end-use customer. A SERVICE LATERAL is also an underground facility that is used in the removal of wastewater from a customer’s premises. Other than SERVICE LATERALS, no private services shall be located within the right-of-way.
SMALL WIRELESS FACILITY. A wireless facility that meets both of the following qualifications:
(1) Each antenna is located inside an enclosure of no more than six cubic feet in volume or could fit within such an enclosure; and
(2) All other wireless equipment associated with the SMALL WIRELESS FACILITY provided such equipment is, in aggregate, no more than 28 cubic feet in volume, not including electric meters, concealment elements, telecommunications demarcation boxes, battery backup power systems, grounding equipment, power transfer switches, cutoff switches, cable, conduit, vertical cable runs for the connection of power and other services, and any equipment concealed from public view within or behind an existing structure or concealment.
SUPPLEMENTARY APPLICATION. An application made to excavate or obstruct more of the right-of-way than allowed in, or to extend, a permit that had already been issued.
TELECOMMUNICATIONS RIGHT-OF-WAY USER.
(1) A person owning or controlling a facility in the right-of-way, or seeking to own or control a facility in the right-of-way that is used or is intended to be used for providing wireless service.
(2) For purposes of this chapter, a cable communication system defined and regulated under M.S. Chapter 238, as amended from time to time, a telecommunications system defined and regulated under M.S. Chapter 237, as amended from time to time, and telecommunication activities related to providing natural gas or electric energy services, a public utility as defined in M.S. § 216B.02, as amended from time to time, a municipality, a municipal gas or power agency organized under M.S. Chapter 453 and 453A, as amended from time to time, or a cooperative electric association organized under M.S. Chapter 308A, as amended from time to time, are not TELECOMMUNICATIONS RIGHT-OF-WAY USERS for the purposes of this chapter, except to the extent such entity is offering wireless service.
TEMPORARY SURFACE. The compaction of subbase and aggregate base and replacement, in kind, of the existing pavement only to the edges of the excavation. It is temporary in nature except when the replacement is of pavement included in the city’s two-year plan, in which case, it is considered full restoration.
TRENCH. An excavation in the pavement, with the excavation having a length equal to or greater than the width of the pavement.
UTILITY POLE. A pole that is used in whole or in part to facilitate telecommunications or electric service.
WIRELESS FACILITY. Equipment at a fixed location that enables the provision of wireless services between user equipment and a wireless service network, including equipment associated with wireless service, a radio transceiver, antenna, coaxial or fiber-optic cable, regular and backup power supplies, and a small wireless facility, but not including wireless support structures, wireline backhaul facilities, or cables between utility poles or wireless support structures, or not otherwise immediately adjacent to and directly associated with a specific antenna.
WIRELESS SERVICE. Any service using licensed or unlicensed wireless spectrum, including the use of Wi-Fi, whether at a fixed location or by means of a mobile device, that is provided using wireless facilities. WIRELESS SERVICE does not include services regulated under Title VI of the Communications Act of 1934, being 47 U.S.C. §§ 151 et seq., as amended, including cable service.
WIRELESS SUPPORT STRUCTURE. A new or existing structure in a right-of-way designed to support or capable of supporting small wireless facilities, as reasonably determined by the city.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022)
The Director is the principal city official responsible for the administration of the rights-of-way, right-of-way permits, and the ordinances related thereto. The Director may delegate any or all of the duties hereunder.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023)
REGULATIONS AND REQUIREMENTS
(A) Permit required. Except as otherwise provided in this code, no person may obstruct or excavate any right-of-way, or install or place facilities in the right-of-way, without first having obtained the appropriate right-of-way permit from the city to do so.
(1) Alter permit. An alteration permit is required by a right-of-way user to alter that part of the right-of-way described in such permit and to hinder free and open passage over the specified portion of the right-of-way by placing facilities described therein, to the extent and for the duration specified therein.
(2) Excavation permit. An excavation permit is required by a right-of-way user to excavate that part of the right-of-way described in such permit and to hinder free and open passage over the specified portion of the right-of-way by placing facilities described therein, to the extent and for the duration specified therein. The installation of wires within the right of way for the purpose of robotic mowers is an authorized justification to be granted a permit. The installation of sprinkler systems within the right-of-way for the purpose of watering lawns, flowers, trees, and other live plants within the right-of-way is an authorized justification to be granted a permit.
(3) Obstruction permit. An obstruction permit is required by a right-of-way user to hinder free and open passage over the specified portion of right-of-way by placing equipment described therein on the right-of-way, to the extent and for the duration specified therein. An obstruction permit is not required if a person already possesses a valid excavation permit for the same project. Normal and legal parking in the right-of-way is exempt for vehicles parked within the right-of-way no more than 24 hours without moving. Vehicles of the owner of adjacent property or authorized user are exempt from the 24-hour period.
(4) Small wireless facility permit. A small wireless facility permit is required by a right-of-way user to erect or install a wireless support structure, to collocate a small wireless facility, or to otherwise install a small wireless facility in the specified portion or the right-of-way, to the extent specified therein, provided that such permit shall remain in effect for the length of time the facility is in use, unless lawfully revoked.
(B) Permit extensions. No person may excavate or obstruct the right-of-way beyond the date or dates specified in the permit unless:
(1) Such person makes a supplementary application for another right-of-way permit before the expiration of the initial permit; and
(2) A new permit or permit extension is granted.
(C) Delay penalty. In accordance with Minn. Rules part 7819.1000 subp. 3, as it may be amended from time to time, and notwithstanding division (B) above, the city shall establish and impose a delay penalty for unreasonable delays in right-of-way excavation, obstruction, patching, or restoration. The delay penalty shall be established from time to time by City Council resolution.
(D) Permit display. Permits issued under this chapter shall be conspicuously displayed or otherwise available at all times at the indicated worksite and shall be available for inspection by the city.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023) Penalty, see § 10.99
(A) Application for a permit is made to the city.
(B) Right-of-way permit applications shall contain, and will be considered complete only upon compliance with, the requirements of the following provisions:
(1) Submission of a completed permit application form, including all required attachments, and scaled drawings showing the location and area of the proposed project and the location of all known existing and proposed facilities;
(2) A certificate of insurance listing the city as an additional insured;
(3) Payment of money, where applicable, due to the city for:
(a) Permit fees, estimated restoration costs, and other management costs;
(b) Prior obstructions or excavations;
(c) Any undisputed loss, damage, or expense suffered by the city because of applicant’s prior excavations or obstructions of the rights-of-way or any emergency actions taken by the city; and/or
(d) Franchise fees or other charges, if applicable. Payment of disputed amounts due to the city by posting security or depositing in an escrow account an amount equal to at least 110% of the amount owing.
(4) Posting an additional or larger construction performance bond for additional facilities when applicant requests an excavation permit to install additional facilities and the city deems the existing construction performance bond inadequate under applicable standards.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023)
(A) Permit issuance. If the applicant has satisfied the requirements of this chapter, the city shall issue a permit.
(B) Conditions. The city may impose reasonable conditions upon the issuance of the permit and the performance of the applicant thereunder to protect the health, safety, and welfare or when necessary to protect the right-of-way and its current use. In addition, a permittee shall comply with all requirements of local, state, and federal laws, including, but not limited to, M.S. §§ 216D.01 through 216D.09 (Gopher One-Call Excavation Notice System) and Minn. Rules Chapter 7560, as they all may be amended from time to time.
(C) Small wireless facility conditions. In addition to division (B) above, the erection or installation of a wireless support structure, the collocation of a small wireless facility, or other installation of a small wireless facility in the right-of-way, shall be subject to the following conditions.
(1) A small wireless facility shall only be collocated on the particular wireless support structure, under those attachment specifications, and at the height indicated in the applicable permit application.
(2) No new wireless support structure installed within the right-of-way shall exceed 50 feet in height without the city’s written authorization, provided that the city may impose a lower height limit in the applicable permit to protect the public health, safety, and welfare or to protect the right-of-way and its current use, and further provided that a right-of-way user may replace an existing wireless support structure exceeding 50 feet in height with a structure of the same height subject to such conditions or requirements as may be imposed in the applicable permit.
(3) No wireless facility may extend more than ten feet above its wireless support structure.
(4) Where an applicant proposes to install a new wireless support structure in the right-of-way, the city may impose separation requirements between such structure and any existing wireless support structure or other facilities in and around the right-of-way.
(5) Where an applicant proposes collocation on a decorative wireless support structure, sign, or other structure not intended to support small wireless facilities, the city may impose reasonable requirements to accommodate the particular design, appearance, or intended purpose of such structure.
(6) Where an applicant proposes to replace a wireless support structure, the city may impose reasonable restocking, replacement, or relocation requirements on the replacement of such structure.
(D) Small wireless facility agreement.
(1) A small wireless facility shall only be collocated on a small wireless support structure owned or controlled by the city, or any other city asset in the right-of-way, after the applicant has executed a standard small wireless facility collocation agreement with the city. The standard collocation agreement may require payment of the following:
(a) Up to $150 per year for rent to collocate on the city structure;
(b) Twenty-five dollars per year for maintenance associated with the collocation; and
(c) A monthly fee for electrical service as follows:
1. Seventy-three dollars per radio node less than or equal to 100 maximum watts;
2. One-hundred-eighty-two dollars per radio node over 100 maximum watts; or
3. The actual costs of electricity, if the actual costs exceed the foregoing.
(2) The standard collocation agreement shall be in addition to, and not in lieu of, the required small wireless facility permit, provided, however, that the applicant shall not be additionally required to obtain a license or franchise in order to collocate. Issuance of a small wireless facility permit does not supersede, alter, or affect any then-existing agreement between the city and applicant.
(Ord. passed 9-14-2021; Ord. passed 5-24-2022; Ord. passed 11-14-2023)
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